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All posts for : Category: Procedure

The latest tribunal statistics, published in March 2017, show that the average waiting time for appeals to be heard in the immigration tribunal is now 48 weeks. This is the time between the appeal being lodged and the appeal being promulgated, I understand. The breakdown for different types of appeal reveals major disparities between different types of appeal, though, with waiting times for entry clearance appeals — for example for spouses or children applying to join family members in the UK — as high as 83 weeks. That is over a year and a half. With 51% of all entry clearance appeals being allowed in Q3 2016, that is a very…

Official headnote: (i) A decision of the Upper Tribunal refusing to exercise its power to reinstate a judicial review claim which has been struck out may be the subject of an application for permission to appeal to the Court of Appeal. (ii) Such a decision, given its nature and consequences, is not to be equated with a mere case management decision. (iii) Every decision upon an application to reinstate must give effect to the overriding objective. (iv) Rule 8 of the Tribunal Procedure (Upper Tribunal) Rules 2008 provides the only mechanism for challenging a strike out order. Rule 43 has no application in this context. The directions in these and…

In an oral decision in the case of R (on the application of AO & AM) v Secretary of State for the Home Department (stay of proceedings – principles) [2017] UKUT 168 (IAC) given on 28 March 2017, the Upper Tribunal refused the Secretary of State’s application to stay the Judicial Review proceedings of AO and AM, two unaccompanied minors previously in the Calais Jungle, and who had been refused their transfer to the UK under the expedited Dublin III process. In the decision Mr Justice McCloskey, President of the Upper Tribunal, offers very useful and interesting guidance on the principles to be followed in applications to stay proceedings pending…

Official headnote: (1) The expression “self-serving” is, to a large extent, a protean one. The expression itself tells us little or nothing. What is needed is a reason, however brief, for that designation. For example, a letter written by a third party to an applicant for international protection may be “self-serving” because it bears the hallmarks of being written to order, in circumstances where the applicant’s case is that the letter was a spontaneous warning. (2) Whilst a statement from a family member is capable of lending weight to a claim, the issue will be whether, looked at in the round, it does so in the particular case in question….

Looks like an unusually helpful guide to the technical aspects of immigration applications: This guidance is for decision makers and describes how to decide whether an application for leave to remain in the UK is valid, and what to do if it is not. It also describes how an applicant can vary and withdraw an application and how to calculate the date of application. Source: Applications for leave to remain: validation, variation and withdrawal – GOV.UK

New fees for immigration and nationality applications come into effect on 6 April 2017. The changes include an increase of 18% in settlement (ILR) applications to £2,297 and dependent relative applications to a huge £3,250. Meanwhile, naturalisation fees have been held at “only” a 4% increase to £1,202, compared to a 25% increase last year. This is all before the Immigration Health Surcharge is added to the cost of an application, which costs £200 per year per migrant for all limited leave visas other than visits (£120 for students). Many suspect the Home Office makes a hefty profit on these fees. They are correct. The actual cost of processing an…

Two interesting and important legal points emerge from the Upper Tribunal’s determination in SF and others (Guidance, post-2014 Act) [2017] UKUT 120 (IAC). The first is on the issue of when, if at all, a British child might be required by immigration policy to leave the UK and the second is how far, if at all, the tribunal might take account of policies of the Secretary of State under the new appeals regime established by the Immigration Act 2014. Reasonableness of requiring a British child to leave UK It turns out that the Secretary of State’s policy is that it is never reasonable to require a British citizen child to…

Well worth a read. This practice note seeks to: clarify the status of legal professional privilege (LPP) explore recent concerns about how the right has been asserted summarise practitioners’ duties clarify the main principles of LPP LPP protects all communications between a solicitor or barrister and his or her clients from being revealed without the permission of the client. LPP is one of the highest rights recognised by English law. It arises when clients approach lawyers for legal advice or for assistance with resolving contentious issues. LPP, which has existed for over 400 years, is treated under English law as a fundamental common law right and as a human right….

The Solicitor Disciplinary Tribunal has fined an immigration solicitor £10,000 for signing off “grossly misleading and inaccurate” statements of truth for judicial review applications. The solicitor concerned, Achyuth Rajagopal of G Singh Solicitors in London, admitted acting recklessly and in a manner apt to mislead the tribunal and failing adequately to supervise the work of the paralegal employee who prepared the applications. The paralegal was not named and had left the firm immediately after the behaviour came to light. Essentially, the unsupervised paralegal was using totally templated judicial review applications irrespective of the facts of the cases. Nine cases were uncovered by the Government Legal Department and the firm admitted…

Official headnote to Lama (video recorded evidence -weight – Art 8 ECHR : Nepal) [2017] UKUT 16 (IAC): (i) Video recorded evidence from witnesses is admissible in the Upper Tribunal. Its weight will vary according to the context. (ii) Alertness among practitioners and parties to the Upper Tribunal’s standard pre-hearing Directions and compliance therewith are crucial. (iii) There are no hard and fast rules as to what constitutes family life within the compass of Article 8 ECHR. (iv) A person’s value to the community is a factor which may legitimately be considered in the Article 8 proportionality balancing exercise. Pre-recorded video would be particularly useful for an entry clearance appeal, it is worth pointing out….

Lord Justice Irwin gives the leading judgment in UB (Sri Lanka) v Secretary of State for the Home Department [2017] EWCA Civ 85, in which the Home Office failed to serve a relevant policy document during an appeal: 16. In my view there was the clearest obligation on the Secretary of State to serve relevant material and ensure it was before the Tribunals at both levels. In AA (Afghanistan) v SSHD [2007] EWCA Civ 12, Keene LJ made the point clear beyond doubt: “27. [It was submitted by the appellant that] the attention of the adjudicator should have been drawn by the Secretary of State’s representative to the policy on…

Potentially useful case when seeking to agree costs in good time. The official headnote: Where judicial review proceedings are resolved by settlement, the parties are responsible for doing all they can to agree costs, both as to liability and amount, rather than leaving this to the decision of the Tribunal, which is likely to carry its own penalty. And from the admirably succinct judgment: 5. I should like at this point to draw both parties’ attention to what Stanley Burnton LJ said at paragraphs 75 – 77 of the Croydon decision: there are too many cases in which courts, or now this Tribunal, are left to decide the question of costs, because the parties…

i) Article 13 of the Immigration (Leave to enter and Remain) Order 2000/1161 (the “2000 Order”) applies to holders of indefinite leave to remain (“ILR”) who travel to a country or territory outside the common travel area so that their ILR does not lapse but continues if Article 13(2)-(4) are satisfied. ii) If the leave of such an individual continues pursuant to Article 13(2)-(4) of the 2000 Order, an immigration officer has power to cancel their ILR upon their arrival in the United Kingdom. iii) The grounds upon which such leave may be cancelled are set out at para 321A of the Immigration Rules. iv) Section 76 of the Nationality,…

The first signs of an online court will be visible in tribunals by September, online processes will be extended to a wide range of civil court proceedings by May 2020, and the reforms will be incremental, according to one of the judges in charge… …The first jurisdictions to adopt the online court would be the social security and child support tribunal, followed by immigration and asylum. What could possibly go wrong? It seems obvious to test online courts on a jurisdiction where litigants do not always speak English and are some of the most vulnerable, marginalised and powerless in society and where tribunal systems mean it is not yet possible to…

The Court of Appeal is testing out a new style of “short form” judgment. Given the backlogs at the Court of Appeal at the moment, this seems eminently sensible. Although the particular judgment — yet another appeal by the Secretary of State against a deportation appealbeing allowed — does beg the question of whether permission is granted rather too readily to the Secretary of State despite the supposed strictures of the second appeals test: This is a short form judgment which, with the encouragement of Sir Terence Etherton MR, judges of the Court of Appeal may in future use for appellate decisions in appropriate cases. This appeal raises no issue…

Official headnote: (i) On a proper construction of paragraph 245AAA(a)(i) of HC 395, an absence from the United Kingdom for a period of more than 180 days in one of the relevant 12 month periods will entail a failure to satisfy the requirements of paragraph 245CD. (ii) The term ‘residence’ in paragraph 245AAA(a) is to be equated to presence. Some very clever arguments put but sadly the case failed. Source: RN, R (on the application of) v Secretary of State for the Home Department (paragraph 245AAA) [2017] UKUT 76 (IAC) (12 January 2017)

The Tribunal Procedure Committee (TPC) is interested to receive your views on changes arising from the Immigration Act 2016, in particular to a number of changes to bail, which the Tribunal Procedure Committee considers may make amendments to the rules relating to bail applications desirable. The Immigration Act 2016 (“the 2016 Act”) received Royal Assent on 12 May 2016. It makes significant changes to the substantive law relating to immigration and asylum, including provisions relating to access to services, facilities, licences and work by reference to immigration status. It makes provision for the Director of Labour Market Enforcement; introduces language requirements for public sector workers; amends fees for passports and…

A rapid decline in the number of immigration tribunal judges could herald a crisis, despite the government’s insistence that there is sufficient capacity to deal with a growing backlog of work. Government figures show that in 2012 there were 347 fee-paid and 132 salaried judges in the first-tier tribunal. In 2016 there were only 242 fee-paid and 77 salaried. In the upper tribunal, a headcount of 40 fee-paid and 42 salaried judges in 2012 declined to 35 fee-paid and 42 salaried last year. Official figures show there were 62,903 outstanding cases in the first-tier tribunal at the end of the third quarter last year, up 20% on the same period…

In her just published book, Reconstructing Judicial Review, Sarah Nason (Bangor University) uses legal theory and empirical research to explore the extent to which the nature of judicial review has changed since 2007. Here she discusses the research behind the book and sets out key features of judicial review as a tool for the advancement of justice and good governance. Source: Reconstructing Judicial Review | UKAJI

The Statement of Changes HC877, of 11 March 2016, gave the Home Office yet another power to refuse applications for leave to enter or remain in the UK. For all applications made on or after 6 April 2016, having a “litigation debt” to the Home Office may be a ground for refusal. These debts may arise in the course of any litigation against the Home Office (e.g. judicial reviews, claims for unlawful detention and appeals), where the court or Tribunal orders the other party to pay the Home Office’s costs. The purpose of this change, according to the Home Office’s Explanatory Memorandum, is to encourage applicants to pay litigation debts…

The High Court has ruled in the case of R (On the Applications Of TN (Vietnam) & US (Pakistan)) v Secretary of State for the Home Department & Anor [2017] EWHC 59 (Admin) that over 10,000 asylum appeals had been decided under procedure rules so unfair that the determinations could be set aside. Any unsuccessful asylum seekers affected by these rules will now need to apply to the immigration tribunal to have their decision set aside. The critical legal question was whether the Court of Appeal judgment in R (Detention Action) v First-tier and Upper Tribunals (Immigration and Asylum Chambers), Lord Chancellor and SSHD [2015] EWCA Civ 840 applied as much…

The Court of Appeal has in effect endorsed the Home Office practice of issuing “supplementary” decision letters during judicial review litigation to try and make good defects in the original refusal. The case is Caroopen & Myrie v The Secretary of State for the Home Department [2016] EWCA Civ 1307. Underhill LJ concludes as follows: In summary, I would reject the submission that there is anything inherently wrong in the deployment by the Secretary of State in judicial review proceedings of supplementary letters post-dating the challenge. They may be effective in any one of three ways identified above. Ms Anderson sensibly acknowledged in her oral submissions that their use was…

Two new Home Office policies were published today: Criminal investigations (Immigration Enforcement) Liability to administrative removal (non-EEA): consideration and notification The one on administrative removal lools particularly important. It covers categories for administrative removal (overstayers, workers in breach, etc), types of illegal entry, no evidence of lawful entry cases, liability to removal, forms of deception, overstaying and extended leave, notification, curtailment and removal under previous legislation. The policy recognises that under the version of section 10 of the Immigration Act 1999 introduced by the Immigration Act 2014, deception no longer triggers a power to remove and instead curtailment action must now be pursued.

President McCloskey has blasted the “cavalier and unprofessional” lawyers for both claimants and the Home Office in his latest determination of Shabir Ahmed and others (sanctions for non – compliance) [2016] UKUT 00562 (IAC). The case is that of four men convicted in 2012 of child sex offences in Rotherham who were subsequently stripped of their British citizenship. The appeal is against deprivation of citizenship. Inevitably, there has been media coverage. The President does not mince his words: The Upper Tribunal has been treated with sustained and marked disrespect. The conduct of these appeals has been cavalier and unprofessional. The rule of law has been weakened in consequence. Some of the exact criticism…

The Parliamentary and Health Service Ombudsman has revealed that it upheld 75% of complaints made against the Home Office and Border Force last year: Incorrect decisions, delays and wrong advice are the top reasons for the Parliamentary and Health Service Ombudsman upholding the highest proportion of complaints about the Home Office than any other government department, a report published today reveals. The report outlines the unresolved complaints the Parliamentary and Health Service Ombudsman investigated about all government departments last year. It provides detailed information about the ‘big four’ departments: the Home Office, Department for Work and Pensions (DWP), Her Majesty’s Revenue & Customs (HMRC) and the Ministry of Justice (MoJ),…

The Supreme Court has given judgment in the case of Mirza v Secretary of State for the Home Department [2016] UKSC 63. The case concerned the effect of section 3C of the Immigration Act 1971 as amended and whether it extends leave where an applicant for leave is found later to have made an invalid application. In short, it does not. The appeals were dismissed. In the course of giving the leading and only judgment, Lord Carnwath expresses dismay at the state of immigration law: I have found this a troubling case. It is particularly disturbing that the Secretary of State herself has been unable to maintain a consistent view of…

The power under the Immigration Act 2016 to certify any human rights appeal, not just deportation appeals, for “remove first, appeal later” treatment came into force today, 1 December 2016. For background see this earlier blog post: New commencement order introduces out of country human rights appeals and more. Guidance has today been updated on how the power should be exercised by immigration officials: Section 94B of the Nationality, Immigration and Asylum Act 2002. Amongst the general updating, a new part has been added on the “phased implementation for non deport cases”. This part of the guidance applies the new power only to cases where the appellant did not have…

Venerable Form FLR(O) is no more and has been withdrawn with effect from today, 1 December 2016. It has been replaced by two new forms: FLR(HRO) broadly for applications outside the Immigration Rules based on human rights: discretionary leave (DL) if you have previously been granted DL but have not previously been refused asylum, granted less than 4 years exceptional leave) medical grounds or ill health human rights claims (not to be used for claims on the grounds of family or private life, including on the basis of family dependencies between a parent and a child, or for protection (asylum) claims) leave outside the rules under the policy concessions in the…

In a surprising but very welcome development, the Government has reversed the 500% increase in fees for immigration appeals which took effect on 10 October 2016. Fees will instead be charged at the old rates and those who have paid the higher fees in the last few weeks will have their payments refunded. The fee increases were due to hit EU nationals and their family members very hard given the number of immigration appeals likely to be generated by the flood of permanent residence applications generated by Brexit. In addition, the Home Office may not have been terribly happy about having to pay the appeal fees in cases in which…

There has been a massive batch of new guidance and forms issued today. At the time of writing these were the updates so far (updated 25/11/16): Application to extend stay in the UK as a partner: form FLR(M) Form UK Visas and Immigration Updated: 25 November 2016 UK ancestry Guidance UK Visas and Immigration Updated: 25 November 2016 Guidance for dependants of UK visa applicants (Tiers 1, 2, 4, 5) Guidance UK Visas and Immigration Updated: 25 November 2016 UK visa, immigration and citizenship application forms Collection UK Visas and Immigration Updated: 24 November 2016 Points-based system: evidential flexibility Guidance UK Visas and Immigration Updated: 24 November 2016 Family members…

There is a new Practice Statement on what tribunal caseworkers (i.e. employed lawyers) can do instead of judges in the First-tier Tribunal Immigration and Asylum Chamber. Some of the functions are definitely ones I would consider to be judicial rather than administrative. I am not sure what has changed since last time but the list is quite a long one: Case management powers under Rule 4(3)(a), 4(3)(c), 4(3)(d), 4(3)(f), 4(3)(h), 4(3)(i), and 4(3)(k); Striking out of an appeal for non payment of fee and reinstatement under Rule 7; Treating an appeal as abandoned or finally determined under Rule 16; Withdrawal functions under Rule 17 (with the exception of Rule 17(2));…

Astonishing conduct by a judge: In summary, the Judge (a) engaged in a private conversation with the Appellant’s representative (b) in the absence of the other party’s representative (c) in the precincts of the court room (d) partly out of sight and earshot of the Appellant and his spouse (e) in a setting other than that of bench/bar (f) before the Appellant’s hearing began (g) relating to the Appellant’s case and, finally, (h) the contents whereof, other than a question about the Appellant’s religious adherence, itself an improper enquiry made in this fashion, were not divulged to the Appellant. Appeal allowed, remitted to a differently constituted tribunal. The headnote reads…

What do you get for your money when you pay for an oral over a paper hearing in the immigration tribunal? Since the introduction of much higher appeal fees in October 2016, the price difference is now between £490 for an “on the papers” decision and £80o for a proper oral hearing, even before paying for a lawyer to turn up. Is it really worth paying the extra for a full hearing? The difference is that an “on the papers” hearing is not really a hearing at all. Both sides have a chance to send in written evidence and submissions and a judge will then review the paperwork and issue a…

Updated Home Office policy on reviewing cases when appeals are lodged: UK Visas and Immigration guidance for how it considers the grounds for appeal and supporting documents of an application. Call me a cynic, but I have never ever seen any evidence that ECOs or the Home Office seriously reconsider a decision when an appeal is lodged. A very polite request for reconsideration can sometimes get results if strong, but just lodging the appeal never seems to lead to reconsideration. If anyone has experience to the contrary, do leave a comment. UPDATE: Interestingly, a few people have been in touch to say they have found some decisions getting overturned when…

The Upper Tribunal in this case considers its powers to set aside its own decisions. The official headnote: The decision of the Court of Appeal in Patel [2015] EWCA Civ 1175 entails the view that the Upper Tribunal’s powers to set aside its own decisions are limited to those in rules 43 and 45-6 of the Upper Tribunal Rules. This is actually a case from July which I seem to have somehow missed over the summer. The determination includes an interesting review of the jurisprudence and history of the tribunal’s powers of set aside, if you like that kind of thing. Which I do, tragically. The main practical import really seems to be that…

As of today, 10 October 2016, it now costs £800 to lodge an appeal against an immigration decision where a proper oral hearing is requested. The change was announced on 15 September 2016 and the necessary legal change, the First-tier Tribunal (Immigration and Asylum Chamber) Fees (Amendment) Order 2016, was laid at the same time to come into effect on 10 October 2016. The new fees only apply where the decision appealed against was taken on or after 10 October 2016, according to Article 7 of the Order: the amendments made by this Order only apply in respect of an appeal to the First-tier Tribunal against a decision which was taken on or after the…

Online versions of the FLR(M) and FLR(FP) application forms are now available for use. The form needs to be printed at the end and sent off to the Home Office with the required supporting documents. Use this online application as an alternative to the FLR(M) and FLR(FP) paper forms. Apply to remain in the UK as the family member or partner (for example, spouse) of a: British citizen person settled in the UK person who has refugee leave or humanitarian protection in the UK You can also use this form to apply on the basis of private life in the UK. You can add some family members (‘dependants’) to your…

The Home Office has quietly and with no fanfare launched online residence certificate and permanent residence certificate application processes and accompanying European passport return service. I have put together a 20 minute video walk through of what the permanent residence application service looks like with some commentary which I hope is helpful for those considering whether to use the service. The video was recorded in October 2016 and the online process has since been updated and improved since then. You can read about the changes here. About the online EEA application process The online process is basically an online version of the EEA(QP) or EEA(PR) forms. However, the online versions…

Access to the Court of Appeal is being restricted with effect from 3 October 2016 by means of important changes to the Civil Procedure Rules (CPR). The headline changes are: Removal of the automatic right to an oral hearing when renewing an unsuccessful application for permission to appeal. Renewed applications will be determined on the papers, but a judge can exceptionally direct an oral hearing. The test for permission on second appeals is re-worded to require “a real prospect of success” (in addition to an important point of principle or practice). New seven day time limit for appeals from refusals of permission to apply for judicial review by the Upper Tribunal….

The Upper Tribunal has ruled that there is no right of appeal to the Court of Appeal against decisions of the Upper Tribunal until Upper Tribunal appeal is finally concluded. This means there is no right of appeal to the Court of Appeal against an Upper Tribunal decision that there was or was not an error of law committed by the First-tier Tribunal. The official headnote: In a statutory appeal, the right of appeal under s 13 of the 2007 Act does not arise until the Upper Tribunal has completed the process required by s 12. I cannot imagine this decision being overturned by the Court of Appeal, which is…

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